June 03, 2010

In Beard Brawl, D.C. is Liable For Economic Damages

A federal judge in Washington has ruled the District of Columbia is not liable for emotional distress by a group of firefighters and paramedics who refused to shave their beards despite a city ban on facial hair for emergency responders. But the city could be on the hook for economic damages.

Senior Judge James Robertson said the plaintiffs may have experienced missed promotions and overtime pay while the suit was pending. The suit was first filed against the city in 2001 in the U.S. District Court for the District of Columbia. Back pay is a remedy in discrimination cases, and it should be available under the Religious Freedom Restoration Act (1993), the judge said. Robertson's decision is here.

The U.S. Court of Appeals for the D.C. Circuit last year affirmed the decision. The plaintiffs, represented by the American Civil Liberties Union, moved in November 2009 for partial summary judgment on the issue of whether the city is liable for compensatory damages.

“A man who is unafraid of running into a burning building … may nevertheless suffer substantial distress when he is forced to violate his religious beliefs by shaving his beard in order to maintain his income to support his [family],” Arthur Spitzer, legal director of the ACLU National Capital Area, said in court papers last November.

A lawyer for the District, Robert Utiger, said in court papers that the plaintiffs, who include Calvert Potter and Steve Chasin, are not entitled to any damages. Utiger defended the city’s ban on beards, saying it was “based on a good-faith position in the available science, not a lack of respect for the plaintiffs’ beliefs.”

Robertson said the plaintiffs are on shaky ground in arguing that compensatory damages for non-economic loss are available under the Religious Freedom Restoration Act.

“Establishing claims for emotional distress … would inevitably lead to discovery of and disputes about the sincerity and importance of religious beliefs – something I would expect plaintiffs’ counsel vigilantly to guard against,” Robertson wrote.

Robertson, who retired from the federal bench June 1, urged the lawyers to meet and confer to resolve the remaining issues without judicial intervention. The case was reassigned to Judge Richard Leon.